The Honorable Charles N. Clevert, Jr., Chief Judge of the 

United States District Court for the Eastern District of Wisconsin, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1116

ANDRE BROWN,

Petitioner-Appellant,

v.

DAVE REDNOUR, Warden, 

Menard Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

 No. 08 C 6666—John W. Darrah, Judge.

ARGUED JANUARY 7, 2011—DECIDED MARCH 25, 2011

Before MANION and WILLIAMS, Circuit Judges, and

CLEVERT, District Judge.



CLEVERT, District Judge. Leon Mayes died from multiple gunshot wounds shortly after midnight on Octo-
2 No. 10-1116

ber 10, 2000. Andre Brown and Derrick Stevens were

charged and found guilty of first-degree murder in separate but simultaneous trials. During deliberations,

a sheriff taking forensic evidence to the Stevens jury

noticed that the Brown jury had an inadmissible police

report. Brown maintains that the jury’s exposure to

that report had a substantial and injurious effect on the

verdict. However, because the police report was cumulative of evidence before the jury, the jury was properly

instructed, and exposure to the report was harmless

under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct.

1710, 123 L. Ed. 2d 353 (1993), we affirm.

I. BACKGROUND

Brenda Green testified that she was sitting in the

driver’s seat of her parked car with her boyfriend, Leon

Mayes, in the front passenger seat, when a silver Pontiac

Sunbird backed up so it was right next to her car. Green

recognized the driver as “Striker,” who had dated her

sister, and the passenger as “Poo,” who had dated her

friend. She had known each man for about five years.

In addition, Green noticed that two others sat in the

backseat of the Pontiac and knew the silver Pontiac belonged to “Striker’s” girlfriend, Valencia. She recognized “Banks” as one of the people sitting in the backseat because he had gone to grammar school with

Green’s sister.

Green heard someone in the Pontiac yell, “There go

that m----- f-----.” The carthen drove off at Mayes’s request.

The Pontiac pursued Green’s car in a high speed chase
No. 10-1116 3

for several blocks remaining “right behind” her. When

Green turned left from 51st Street onto Ashland Avenue,

she heard gunshots. Mayes said that “Striker” was shooting at her car. Looking in the rearview mirror, Green saw

“Striker’s” left hand coming out of the car with a gun.

Mayes told Green to slow the car down and to jump

out, and she did. Mayes remained in the car as it rolled

down the street. The Pontiac then pulled over to the side

of the street, “Poo” got out, ran up to Green’s car, and

shot into the passenger side of the car where Mayes was

sitting. With his last shot, “Poo” said: “We got that m-----

f-----. Bar None, running it.” “Poo” got back into the

Pontiac and “Striker” drove away.

Green approached her car, which had stopped against

a pole at 50th Street and Ashland Avenue. She found

Mayes “shot up in a lot of blood.” At the scene, Green

told police that “Striker” and “Poo” were responsible

for the shooting.

Viewing photographs at the police station that same

night, Green identified Andre Brown, Derrick Stevens,

and Marlin Gosa, as “Striker,” “Poo” and “Banks” respectively. She also identified all of them in lineups. Green

further identified Brown in open court as one of the

shooters, reiterating that he was “Striker” and that he

had shot Mayes.

In addition, Marlin Gosa testified that he, Brown and

Stevens were members of the Black P Stones gang, and

identified Brown as “Striker.” Prior to the trial, Gosa

provided a signed statement and grand jury testimony

detailing his eyewitness account of Mayes’s murder. The
4 No. 10-1116

statement and grand jury testimony indicated that Gosa

was standing on a street corner, when “Dre” (a/k/a Andre

Brown) appeared driving a gray Pontiac. Stevens sat in

the Pontiac’s front passenger seat. Brown and Stevens

tried to convince Gosa to accompany them to a nightclub for Brown’s birthday. Gosa declined but asked

Brown to drive him home.

After driving a few blocks, Brown spotted a familiar

man and woman sitting in an old Chevrolet. Brown

passed the Chevrolet, then reversed to pull even with it

and shouted, “She with that m----- f-----.” The woman

behind the wheel said something and drove away suddenly. She then led Brown on a high speed chase. During

the chase, Gosa saw Brown sticking a gun through his

window and fire it at the man in the Chevrolet’s

front passenger seat. The chase ended when the

woman jumped out. Brown stopped the Pontiac and

Stevens exited holding Brown’s gun. Stevens ran towards

the Chevrolet, firing repeatedly into its passenger side.

Fleeing from the shooting, Brown remarked, “The b----

better not tell,” referring to the woman who witnessed

the crime. Brown, a Black P Stone general, instructed

Gosa not to talk to police about the murder.

Notwithstanding his statement and grand jury testimony, Gosa failed to respond to the subpoena to

appear at Brown’s trial. After being arrested and forced

to appear, Gosa claimed—despite his earlier testimony

and the recovery of his fingerprints on Valencia Washington’s Pontiac—he was not with Brown on the night

of the murder. Gosa conceded that he gave a handwrit-
No. 10-1116 5

ten statement and testified before the grand jury that

he was in a car with Brown and Stevens on October 10,

that the car was involved in a high speed chase, and that

Brown and Stevens had shot Mayes. Nevertheless, Gosa

maintained that the police told him what to say in his

statement and that he lied to the grand jury because

the police threatened to charge him with murder. As to

the sequence of events surrounding the car chase and

the shootings, Gosa’s signed statement and grand jury

testimony were not dissimilar from Green’s testimony.

The jury heard that at the time of the murder, Brown

lived with Valencia Washington, the mother of his child

and owner of the silver Pontiac involved in the murder.

Brown had a set of keys to Washington’s car and it

was not unusual for him to drive it. When Brown returned the morning after the shooting and heard that

police had visited looking for him, he fled. Washington

did not see Brown again for over ten months.

Soon after Mayes was shot, Chicago Police Officer

James Sullivan interviewed several witnesses to the

murder, including Green. Sullivan summarized the

information he gathered from the interviews in a case

report. The one-page, two-sided report listed six witnesses to the crime, named “Pooh” and “Striker” as the

offenders, noted the offenders were members of the

“Stones,” provided a description and license plate

number of the offenders’ vehicle, and included a brief

description of the crime. Of the six witnesses listed in

the document, one was the murder victim, Mayes, one

was Green, and one was Kenneth Thornton. Mayes was
6 No. 10-1116

witness 1, Green was witness 2, and Thornton witness 3.

The police report labeled the other three witnesses 4

through 6. The report attributed to witnesses 3-6 the

following description: 

[T]hey all witnessed off[ender]s run up to the victim

while firing several shots. Off[ender]s then got into

their vehicle and fled in an unknown direction. The

veh[icle] the victim was in then began to proceed

north bound on Ashland at [illegible word] [illegible

word] striking a pole at 5000 S. Ashland. 

At trial, defense counsel used the police report to crossexamine Green and Sullivan. The questioning established: (1) that the police report listed six witnesses to

the crime, including Thornton; (2) at the crime scene, Green

identified Brown and Stevens as Mayes’s killers—Stevens

by his street name and Brown by his street name or by his

street name and his legal name; and (3) Brown drove

Valencia Washington’s car during the attack, while Green

provided its license plate number to Sullivan at the crime

scene.

Prior to deliberations, the court instructed the jury as

follows: “The evidence which you should consider

consists only of the testimony of the witnesses, the

exhibits, and stipulations which the court has received.”

The court further instructed that for first-degree

murder the state must prove that during the commission of the offense Brown personally discharged a firearm.

During its deliberations, the jury sent out a note asking

if it needed to prove that Brown personally discharged

a firearm. The jury also asked for the police report docu-
No. 10-1116 7

menting other witnesses’ names, Valencia Washington’s

license plate number, whether any statements were

taken from the other witnesses at the crime scene and

whether they could see their statements. The court responded—with the approval of Brown’s attorney—as

follows: “No, you may not have additional evidence.

You have received all of the evidence. I direct your attention to the first instruction that indicates the evidence which you should consider consists only of the

testimony of the witnesses, the exhibits, and stipulations which the Court has received.”

Meanwhile, the Stevens jury had finished hearing

closing arguments and jury instructions. The sheriff went

into Brown’s jury room to retrieve the only copy of the

forensic evidence to give to Stevens’ jury. At that time,

the sheriff saw one of the Brown jurors reading a police

report that had not been admitted into evidence and

took it to the judge. The parties agreed that the police

report had been inadvertently left in an envelope that

contained admitted exhibits.

The jury sent out another note asking about the

process if it could not reach a unanimous verdict. The jury

was told to continue deliberating. Later, the jury wrote an

additional note asking, “Can we please have back the

yellow folder that was half way slit on the side and included the police report of the inventory of items taken?”

However, the police report at issue contained no inventory

of items. With the consent of Brown’s attorney, the court

proposed to repeat the response to the first note. But,

before the court could respond, the jury announced it had

reached a verdict.
8 No. 10-1116

After the reading of the verdict, defense counsel moved

for a mistrial on the ground that the jury’s request for

the police report indicated that it had considered it

during its deliberations. The prosecutor responded that the

jury’s request indicated that it could not remember the

contents of the police report and did not rely on the police

report in reaching the verdict.

The court denied the mistrial motion on the ground

that exposure of the jury to the report did not prejudice

Brown; the disclosure was inadvertent; much of the

information in the report was brought out by the

defense to impeach the state’s witnesses; and the jury

was instructed that it should only consider the testimony

of the witnesses, the exhibits, and stipulations that the

court received.

On direct appeal, Brown argued, in part, that the jury’s

exposure to the police report violated his Fourteenth

and Sixth Amendment rights to due process and to confront witnesses against him. The Illinois Appellate

Court, First Judicial District, affirmed on July 23, 2007,

citing Brown’s identification through Green’s testimony

and Gosa’s signed statement and grand jury testimony.

Brown’s petition for leave to appeal to the Illinois

Supreme Court was denied on November 29, 2007.

Brown filed a timely petition for writ of habeas corpus

in the Northern District of Illinois, which was denied on

November 5, 2009. The district court held that under

Brecht the error in the state court did not have a substantial injurious effect or influence on the jury. Specifically, the district court cited the cumulative nature of
No. 10-1116 9

the information in the police report and the trial court’s

curative instructions in response to the jury’s request

for the report. Brown’s request for a certificate of

appealability was denied by the district court, but, this

court granted it on the following issue: “whether [petitioner] was prejudiced by the presence of an inadmissible police report in the jury room.”

II. DISCUSSION 

The Illinois Appellate Court found that an error

occurred in Brown’s trial, but affirmed his conviction

after applying the wrong standard. Citing Cranwill v.

Donahue, 132 Ill. App. 3d 873, 478 N.E.2d 22 (3d Dist. 1985),

the court acknowledged that juries should not see police

reports because they are in the nature of hearsay but

determined that Brown was not prejudiced because there

was no “aura of mystery” surrounding the report. However, the appellate court should have determined whether

the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d

705 (1967).

Recognizing that Cranwill was the wrong standard, the

district court applied Brecht v. Abrahamson, and considered whether the entry of the inadmissible police

report into the jury room had a substantial and

injurious effect or influence on the jury’s decision. 507

U.S. 619, 637-38, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).

The district court concluded:

The trial court made clear to the jury, in response to

[its] question about the police report, that the only
10 No. 10-1116

evidence to be considered was the testimony of the

witnesses, the exhibits and any stipulations received

by the court. The substantial weight of the properly

admitted evidence, along with the court’s clear instruction to the jury that the police report was not a

part of the evidence, effectively further limited the

impact of the trial error. It cannot be said that the

entry of the police report into the jury room had a

substantial or injurious effect.

The initial question on federal review of a habeas

petition is whether the state court decision involved an

unreasonable application of clearly established federal

law. 42 U.S.C. § 2254(d). However, if the state court

never conducted the harmless error analysis or otherwise applied Chapman unreasonably, the federal court

must make an independent decision as if the state court

never addressed the subject at all. Johnson v. Acevedo, 572

F.3d 398, 404 (7th Cir. 2009). Hence, here, the Brecht

standard is appropriate in determining whether the

error was harmless. Id.

Where a federal judge in a habeas proceeding is “in

grave doubt about whether a trial error of federal law

had ‘substantial and injurious effect or influence in determining the jury’s verdict,’ that error is not harmless.”

O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992, 130

L. Ed. 2d 947 (1995). However, in the habeas context,

“trial errors are often found harmless where the record

is replete with overwhelming evidence of the defendant’s

guilt.” Whitman v. Bartow, 434 F.3d 968, 971 (7th Cir.

2006). In addition, erroneously admitted evidence, if
No. 10-1116 11

cumulative, is also harmless error. See Hinton v. Uchtman,

395 F.3d 810, 821 (7th Cir. 2005) (citing Brecht, 507 U.S.

at 639, 113 S. Ct. 1710).

According to Brown, habeas corpus must be granted

because even under Brecht the error was substantial.

He cites the unreliable nature of eyewitness identification and the jury’s request to see the erroneously admitted report after being instructed on what is evidence.

Specifically, Brown argues that Green and Gosa were not

credible, purposefully lied to police and failed to

recall matters during their trial testimony. Green, for

example, testified that she lived with her parents and

had never given another address. On cross-examination,

Green admitted lying to police about her name and

where she was living at age 16 (in 1991) hoping to stay out

of trouble. Also, Green did not give police the name of

Andre Brown immediately, but rather identified “Striker” and “Poo” as individuals she knew. On

cross-examination, she could not recall whether she

ducked down during the chase and shooting or

whether she left the car in drive.

Brown ignores that Green identified him at the scene,

within hours of the murder while viewing photographs at the police station, and in a lineup. In addition,

Brown fails to acknowledge that Green identified him

in open court as one of the shooters. Whether she

ducked down as shots were fired or remembered to

put the car in park were matters of credibility for the

jury to assess. See United States v. Williams, 216 F.3d 611,

614 (7th Cir. 2000). At best, these facts are peripheral to
12 No. 10-1116

Green’s unequivocal identification of Brown and certainly not facts that would render her testimony exceptional or physically impossible. Id.

Admittedly, Marlin Gosa never accused Brown at

trial and maintained that his prior statements to police

were untrue. However, Gosa acknowledged his prior,

handwritten statement and testimony before the

grand jury regarding Mayes’s killing. His prior statement and testimony were read and received as evidence

corroborating Green’s trial testimony. And while the

jury seemed deadlocked prior to reaching a verdict and

twice asked to see the police report, its note to the

court referred to a “yellow folder that was half way slit

on the side and included the police report of the inventory of the items taken.” The police report at issue

did not contain an inventory of the items.

Ultimately, Brown has not refuted the appellee’s assertions that the one-page, two-sided, police report contained no material evidence that was not otherwise

before the jury. The police report indicated that there

were six witnesses to the shooting of Mayes, including

Kenneth Thornton, and the trial testimony established that

the police report listed six witnesses including Green and

Thornton. The police report identified the offenders as

“Pooh” and “Striker,” members of the Stones gang, and the

trial testimony established the same. The police report provided a description and license plate number, and the

trial testimony established that the assailants drove

a gray Pontiac displaying a license plate matching

Valencia Washington’s license plate. Moreover, the police
No. 10-1116 13

report stated that the non-testifying witnesses saw the

assailants run to the victim while firing shots, get

into their vehicle, then flee as the car with the victim

rolled north on Ashland and struck a pole. Additionally,

the trial testimony established that Stevens ran toward

the victims’ vehicle firing multiple shots into the

passenger side, the assailants drove away, and Green’s

car continued to roll until it hit a pole at 50th and

Ashland. It is especially notable that Brown’s counsel

used the police report in an attempt to impeach state witnesses. Indeed, Brown was convicted after the curative

instruction made clear to the jury that the requested

police report was not in evidence.

This is not a case of grave doubt. The evidence

against Brown cited by the appellee and unrefuted by

Brown was overwhelming, and the police report that

went to the jury room mistakenly was cumulative. Brown

had the opportunity to cross-examine Green and Gosa,

both of whom had the opportunity to observe him

at the time of the shooting and implicated him as

the driver who fired shots at Mayes. Arguing that

others have been cleared with DNA evidence or that

courts recognize the inherent dangers of eyewitness

identification does not undermine the strength of the

evidence in this record. The jury was in the best position

to assess the credibility of Green and Gosa and, under

these circumstances, this court cannot find that it

is “reasonably likely” that the jury relied on the

inadmissable police report and that the police report “had

substantial and injurious effect or influence” in determining the verdict.
14 No. 10-1116

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s denial of Brown’s petition for a writ of habeas

corpus.

3-25-11